Sunday, January 11, 2015

At least four Justices of the Supreme Court voted (despite the absence of a Circuit split) to hear a challenge to the Affordable Care Act. A provision- read in isolation- provides health insurance subsidies to those who become insured through state exchanges. Since most GOP-led states refused to establish a health insurance exchange those who bought on the federal exchange Healthcare.gov would lose their premium subsidies if the plaintiffs prevail.

Levinson's main point is that a recent Washington post editorialist Stephen Stromberg column "illustrates how hard it is to escape the view/hope that suggests that justices live in an apolitical realm where consequences don't matter and the language of complex documents "compels" them to do what they think is really bad for the society." - gwcBalkinization: Obfuscating what judges do

by Sandy Levinson // UT Austin Law School

There is an illuminating piece by Stephen Stromberg in today's Washington Post [What would happen if the Court dismembers Obamacare]on the utter disaster that will ensue if those supporting the challenge in King v.Burwell prevail before the Supreme Court re the "state" as distinguished from "federal" exhanges. He notes not only that literally millions of people would lose their coverage in Republican states, but also that premiums would likely skyrocket and set up the "death spiral" of health insurance. The Republicans would get what they've been wishing for (and haven't achieved), which is a true trainwreck (for which they have no plausible solution whatsoever).

But my purpose is not to rant about evil Republicans and their unceasing attempts to torpedo Obamacare (which I'd gladly see replaced by a Canadian single-payer system if that were politically feasible). Rather, I'm interested in the language that Stromberg, a member of the Post's editorial board, uses to describe the stance of the Supreme Court:

The court can’t base its ruling merely on the possible effects.

The Urban Institute analysis gives a sense of the stakes [8.2 million more uninsured and 35% higher premiums]. It’s astonishing that the coalition challenging the government would welcome such an outcome, creating a policy fiasco where they only imagined one to be before....

Though they have plenty of legal reasons to avoid it, a majority of justices might still rule that lawmakers’ language compels a negative result, detonating the bomb instead of defusing it."